or it will be deemed waived, although the court may, notwiths tanding such waiver, require an assignment: Andrews v. Burdick, 16 N. W. Rep., 275. Where an amended assignment of errors is filed more than ten days before

SEC. 3184.

This section, so far as it authorizes a certificate by the clerk in equitable actions tried wholly upon depositions and papers on file, is not repealed by 17 G. A., ch. 145, amending § 2742 (which see), and such certificate of the clerk is still sufficient in such cases to enable the supreme court to consid er the case, and the rule that the certificate of a judge must be given at the term has no application to such certificate of the clerk: Cross v. B. & S. W. R. Co., 58-62.

An objection that papers of record in the court below are certified to the supreme court by copy instead of in their original form should be raised in time to permit the other party to correct the error, if it be one, by filing the original papers. Such an objection not made before the final submission of the case will not be regarded: McDonald v. Farrell, 60335.

It is not competent to contradict the recitals in the bill of exceptions by affidavit or by certificate of the judge: Pearson v. Maxfield, 47-135; Dedric v. Hopson, 17 N. W. Rep., 772; Conner v. Long, 19 N. W. Rep., 221. But upon suggestion of diminution of the record a party may have the record in the lower court corrected or amended by proper proceedings therein, and present the record as thus amended to the supreme court by supplemental abstract: Mahaffy v. Mahaffy, 18 N. W. Rep., 685.

A motion to strike the evidence from the abstract because not preserved by the bill of exceptions, properly raises the question whether there was or not a bill of exceptions, and this can be settled only by the record of the court below. Lost records in the court below cannot be supplied by affidavits in the supreme court: Morris v. Steele, 17 N. W. Rep., 490.

The supreme court will not strike the evidence from the abstract upon motion, where it is in considerable doubt as to what ought to be done, or where the proper ruling would require a somewhat careful and extended investigation of the abstract; it

the term at which the cause is submitted, and duly served, it will be considered: Kendig v. Overhulser, 58-195.

As to assignments of error, see, also, § 3207 and notes.

will either overrule the motion or require it to be submitted with the cause, and where such a motion is overruled the court does not consider itself precluded from determining upon the submission whether the record is such that the case can properly be considered upon its merits, especially where appellee insists in his argument that it cannot: Alexander v. McGrew, 57-287.

If no question is made as to the filing of the bill of exceptions, the court presumes that the evidence has been properly preserved. If the appellee states in his abstract that no proper bill of exceptions has been filed and moves to strike out the evidence on that ground, the court does not take the statement as true, but refers to the transcript for a determination: Wilson v. First Presbyterian Church of Mount Ayr, 60112.

Even if it appears that the transcript contains a paper not properly identified by the bill of exceptions, this fact will not warrant the striking the whole bill of exceptions from the record: Hardy v. Moore, 17 N. W. Rep., 200.

If an abstract is not denied by the appellee in an amended abstract, the record set out will be taken to be correct, as, for instance, it will be assumed that a bill of exceptions was filed. But if such facts are denied in an amended abstract, the denial will be taken to be true, in the absence of a transcript: Brainard v. Simmons, 58–464.

Where the abstract, although failing to show that a bill of exceptions was filed in the court below, contains matter which it could not properly contain unless made of record, the court will regard the appellant as claiming that it was made of record and a direct statement to that effect will not be necessary. If the appellee desires to claim that no bill of exceptions was filed he must do so in an additional abstract: Thompson v. Silvers, 59-670.

To secure a review of a law action

An abstract which states that all the evidence in the case was reported and certified to by the reporter of the court and duly certified by the court as being all the evidence offered in said trial, will not be sufficient to enable the court to try the case de novo if it fails to state that it (the abstract) contains all the evidence, that is, an abstract of all the evidence upon which the case was tried: Cassady v. Spofford, 57-237; Ward v. Snook, 61-610; Porter v. Stone, 17 N. W. Rep., 654; Hall v. Harris, 61-500; Phoenix Ins. Co. v. Findley, 59-591; but this objection will not be regarded where appellee files an additional abstract setting out the evidence on which he relies: Alexander v. McGrew, 57-287.

The statement in the abstract to show that all the evidence is comprehended therein is sufficient, if the opposite party and the court are fairly apprised that the appellant claims that he has presented an abstract of all the evidence, and in such cases the court will presume that he has, unless appellee sets out additional evidence: Miller v. Wolf, 18 N. W. Rep., 889.

Where an abstract contains a statement that it is an abstract of all the evidence, it is assumed, not only that this statement is true, but that the evidence was made of record by due certification unless it is made to appear to the contrary; but where the certificate relied upon is set out, and appears to be insufficient, that presumption will not be entertained: Alexander v. McGrew, 57-287.

In the absence of an amended ab

stract denying the statements contained in appellant's abstract, the latter is deemed to be true, notwithstanding such a denial is made in the argument of counsel: Farmer v. Sasseen, 18 N. W. Rep., 714; Weaver v. Kintzley, 58-191; and this is the rule, even where the bill of exceptions containing the evidence has been stricken from the files: Roberts v. Leon Loan & Abstract Co., 18 N. W. Rep., 702.

Where appellant's abstract purported to contain all the evidence in the case, and appellee in his abstract denied that the appellant's abstract contained all the evidence offered, and that the evidence therein was correctly abstracted, held, that appellant's abstract would be deemed correct, it appearing that all the evidence was by depositions which were before the court, and appellee's abstract not showing wherein appellant's abstract was insufficient or incorrect: Cross v. B. & S. W. R. Co., 58-62.

Where appellant's abstract contains no averment that all the evidence is found therein, and appellee files an amended abstract setting out certain evidence alleged to have been omitted from the original abstract without the statement or claim that the two abstracts together do not contain and present all the evidence, appellee cannot afterwards urge that all the evidence is not before the court: Van Sandt v. Cramer, 60-424.

Where the abstract of the appellant does not parport to contain all the evidence, the appellee may set forth in his amended abstract omitted portions with the statement that with his additions the abstract does not contain all the evidence: Cartwright v. Copess, 60-195; Hall v. Harris, 61-500. But where the abstract of appellant purports to contain all the evidence, the appellee must supply what he claims has been omitted: McArthur v. Linderman, 17 N. W. Rep., 531.

Where appellee in an amended abstract states that the abstracts together do not present all the evidence, such statement will be deemed true unless denied, and the court cannot hear the case de noro: Love. v. Donaldson, 19 N. W. Rep., 804.

Where the abstract shows upon its face that it does not contain all the testimony, and appellee files an

SEC. 3194.

Where in a case triable de novo, the appellant fails to file any argument, it will be regarded as a failure to prosecute the appeal: Scott v. Neises, 61-62.

A party who has not appealed cannot have any relief: Devoe v. Hall, 60-749.

Where the court below made a rinding of facts unfavorable to defendant, and to which he excepted, and rendered judgment for defendant upon another question, and upon appeal by plaintiff the judgment was reversed, held, that as the correctness of the finding of facts could not be inquired into, although defendant also appealed, for the reason that that there was no judgment against him, the court would not enter up judgment upon the finding of facts, but remand the case to the district court to retry the issues of law and fact: Boyce v. Wabash R. Co., 18 N. W. Rep., 673.

The supreme court will not reverse a case in behalf of a party where the right which he seeks to protect, if it ever existed, has expired: Cutcomp v. Utt, 60-156; nor to enable appellant to recover nominal damages when that is all the relief to which he is entitled: Watson v. Moeller, 18 N. W. Rep., 857; Wire v. Foster, 17 Id. 174.

Where a decree was reversed on the ground that the court below had erred in overruling a motion to strike certain depositions from the files, for the reason that they had been taken without authority, and the decree was reversed and the cause remanded, held, that the court below could not be required to dismiss the cause or enter decree for opposite party, but must proceed to try the case anew: Kershman v. Swehla, 17 N. W. Rep., 908.

Where an equity case is appealed and tried anew, and the action of the court below is determined to have been erroneous, the successful party is entitled to have such decree as is

SEC. 3198.

proper on the record as made in the court below, entered up in the supreme court: First National Bank of Davenport v. Baker, 60–132.

Where an ordinance provided for a fine for maintaining a nuisance and a person was under such ordinance fined, and the abatement of the nuisance ordered, and the supreme court held that the ordinance in so far as it provided for a fine was in excess of authority and void, held, that it would not sustain so much of the judgment as provided for the abatement of the nuisance, but would reverse the whole judgment: Incorporated Town of Nevada v. Hutchins. 59-506.

Where an appeal is taken on the ground of defects in the record, it is incompetent for the appellant, without obtaining a rehearing, to bring the case again before the court upon the same appeal, on a corrected record: Green v. Ronen, 17 N. W. Rep., 180.

Want of jurisdiction of the subjectmatter in the court below, may be raised for the first time on appeal to the supreme court, or may be taken notice of by the court, although not raised: Groves v. Richmond, 53-570; therefore held, that where а change of place of trial had been granted to a court which could not entertain jurisdiction of the action, the judgment in such court would upon appeal be reversed, and the cause would be remanded to the court from which the change was improperly taken, and proceedings subsequent to the improper change of venue will be disregarded: Cerro Gordo Co. v. Wright Co., 59-485; Bennett v. Carey, 57-221; and see notes to § 2590.

Where the judgment will affect the title to real estate, it should be entered in the district court, and the case will be remanded for that pur pose: Hait v. Ensign,17 N. W. Rep., 163.

Where at the time of sale an appeal was pending, and on a subsequent deterinination of such appeal, the

judgment was reduced to an amount less than that for which the plaintiff bought in the property at the sale,